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Why Data Retention? Australian Government Hasn't Backed Up Its Argument

Australian law enforcement and intelligence agencies are repeatedly pushing the idea that they’ve been rendered helpless by the explosion of new communications technologies. The argument that wiretapping laws should undergo “modernization” to match today’s communications technologies has been used to justify a package of legislative amendments that would broaden online surveillance powers. The most controversial aspect of this proposal is a mandatory data retention framework, which would require blanket storage of all Australians’ communications data for up to two full years.

Despite the oft-repeated narrative that there is an urgent need for this new set of wiretapping capabilities, a recently published official overview points out that the government has offered very little in the way of concrete evidence to back up this claim.

“Neither the Government nor any of the law enforcement and security agencies appear to have attempted to quantify the problem they claim exists,” according to the background note prepared by the Parliamentary Library, which produces independent evaluations of proposed legislation to support the work of the Australian Parliament. The briefing goes on to note that the government has offered “no real evidence to suggest that it has experienced any problems accessing communications data when it has needed to.”

Still, Australian Security Intelligence Organisation (ASIO) chief David Irvine reiterated the claim in a recent interview on Background Briefing, a national radio program. “Once upon a time, interception was very easy: one telephone to another telephone,” Irvine said. “Today there are hundreds of different ways of communicating electronically and the law does not cater for those ways in the way it should.”

Far from being merely an upgrade to existing laws to keep pace with technology, the proposed data retention framework would open the door to mass surveillance of digital communications. It would require communications service providers to store communications data, which can include subscribers’ registration details, time and duration of communications, phone numbers or email addresses of the sender and recipient, and location information. The data would be held for up to two years and made available for disclosure to law enforcement upon request.

While proponents have been quick to point out that agencies wouldn’t be readily granted access to the content of communications under this framework, there are cases – such as headers in the subject line of an email – where those distinctions can blur. And as German Green Party representative and privacy activist Malte Spitz demonstrated with a visualization of the cell phone locational data his mobile provider collected about him over six months, location information alone is enough to yield a portrait of an individuals’ daily routine in granular detail.

It's also tough to distinguish between content and communications data when it comes to logs of web-browsing activity. Last week, a representative from the Australian Attorney General’s Department stated during a Parliamentary hearing that the data retention proposal might be altered to exclude web-browsing history – “in a move to allay public outrage,” according to a recent news report.

When questioned about whether URLs are included, [Attorney General representative Roger Wilkins] said … URLs would be classified as content data and would require a warrant in order to be obtained by law enforcement. He said that the metadata definition could be altered to state that explicitly.

While Irvine, the head of ASIO, told the host of Background Briefing that the data retention proposal “doesn’t impinge any further on people’s privacy,” a wide array of civil liberties and political organizations are mounting opposition due to concerns about the dramatic privacy implications of the proposal.

The radio segment also featured an interview with Electronic Frontiers Australia (EFA). “As Australians we’re really lucky we’ve never really had to deal with these sorts of issues, so I don’t think we understand what’s at stake here,” EFA's Jon Lawrence told the program’s host, Di Martin. “We are potentially sleepwalking into a mass surveillance state.”

He noted that Australia appears to be emulating the European Union Data Retention Directive, a policy framework that has attracted intense controversy, for its own national law. Opponents have decried the directive as incompatible with the values of a free society, and courts in Germany and elsewhere have rejected it as unconstitutional.

Philip Boulten is an attorney and member of Australia’s Law Council, which drafted a detailed submission on the surveillance proposal. “This is an attempt to get every extra conceivable way of spying on somebody,” Boulten warned when he was featured on the radio show. “There is no other way that anyone could actually come up with to allow this, except to allow ASIO to actually sit in somebody’s bedroom fulltime.”